E.g., Scheller, 138 Ill. App.3d 219 (rejecting constructive discharge concept); Dudycz v. City of Chicago (1990), 206 Ill. App.3d 128; see also Melton v. Central Illinois Public Service Co. (1991), 220 Ill. App.3d 1052, 1056 (rejecting plaintiff's claim that "a threat to discharge or discipline short of discharge" stated a valid cause of action). In Hindo v. University of Health Sciences/Chicago Medical School (1992), 237 Ill. App.3d 453, 460, the court expressly rejected retaliatory demotion as a cause of action. The plaintiff sought relief after he was demoted from his position as chairman of the department of radiology allegedly in retaliation for exposing a scheme involving falsified time cards.
Sometime thereafter, Hindo filed an amended complaint which added a new count alleging that the University violated 31 U.S.C. § 3720(h) by threatening to terminate his tenure and by discharging him from his position as chair of the Department of Radiology for reporting the University's supposed fraudulent billing to the Medical Center. The University moved to dismiss that count on the ground that Hindo's unsuccessful prior state court litigation against the University for retaliatory discharge barred those claims. See Hindo v. University of Health Sciences/The Chicago Medical Sch., 604 N.E.2d 463 (Ill.App.Ct. 1992), appeal denied, 612 N.E.2d 513 (1993). In late 1993, after the discovery cutoff date and while the University's motion to dismiss was pending, Hindo sought leave to file his Second Amended Complaint which added additional allegations of harassment by the University in "retaliation" for Hindo's reporting the fraudulent billing.
Under Illinois law, "[t]o establish a valid claim of intentional interference with an existing contract right, a plaintiff must prove: (1) the existence of a valid and enforceable contract between the plaintiff and another; (2) the defendant's awareness of this contractual relation; (3) the defendant's intentional and unjustified inducement of a breach of the contract; (4) a subsequent breach by the other caused by the defendant's wrongful conduct; and (5) damages." Hindo v. University of Health Sciences, 237 Ill. App.3d 453, 178 Ill.Dec. 207, 212-13, 604 N.E.2d 463, 468-69 (1992), app. denied, 149 Ill.2d 649, 183 Ill.Dec. 861, 612 N.E.2d 513 (1993); see also Prudential Ins. Co. v. Van Matre, 158 Ill. App.3d 298, 110 Ill.Dec. 563, 567, 511 N.E.2d 740, 744 (quoting Belden Corp. v. InterNorth Inc., 90 Ill. App.3d 547, 45 Ill.Dec. 765, 768, 413 N.E.2d 98, 101 (1980)), app. denied, 117 Ill.2d 553, 115 Ill. Dec. 409, 517 N.E.2d 1095 (1987). Illinois law appears to be unsettled on the issue of whether an at-will employee may bring a cause of action for tortious interference with contract.
The court must construe the evidence strictly against the movant. ( Hindo v. University of Health Sciences/Chicago Medical School (1992), 237 Ill. App.3d 453, 459.) A plaintiff against whom summary judgment is sought need not prove his case at this stage, but he must present some facts that arguably would entitle him to judgment.
He never once identifies the elements of a retaliation claim under the Illinois constitution. As a consequence, the parties never focus on relevant inquiries, such as whether Illinois public policy has been violated by the alleged retaliatory conduct, see Fellhauer v. City of Geneva, 568 N.E.2d 870, 875 (Ill. 1991) ("the mere citation of a constitutional or statutory provision in a complaint will not by itself be sufficient to state a cause of action for retaliatory discharge"), or whether, under Illinois law, a failure to promote can ever serve as a basis for a retaliation claim, see Hindo v. Univ. of Health Sciences/Chicago Medical Sch., 604 N.E.2d 463, 468 (Ill. App. Ct. 1992) ("Illinois courts do not recognize a cause of action for retaliatory demotion."). Because Terrell has failed to address the applicable state law, he has forfeited his argument that Count IV should be dismissed for failure to state a claim.
The state court dismissed the retaliatory discharge count because Hindo had not presented facts supporting discharge; in other words, he had not been discharged but merely demoted from the chairmanship while remaining a tenured faculty member. See Hindo v. University of Health Sciences/Chicago Medical School, 237 Ill. App.3d 453, 604 N.E.2d 463, 468 (2d Dist. 1992). The state court concluded that Illinois does not recognize a cause of action for retaliatory demotion.
See Kelsay v. Motorola, Inc., 74 Ill. 2d 172. 384 N.E.2d 353. 23 Ill. Dec. 559 (1978) (adopting exception for retaliatory discharge for filing workers' compensation claim). See, e.g., Hartlein v. Illinois Power Co., 151 Ill. 2d 142. 601 N.E.2d 720, 176 Ill. Dec. 22 (1992): Hinthorn v. Roland's of Bloomington, Inc., 119 Ill. 2d 526, 519 N.E.2d 909, 116 Ill. Dec. 694 (1988): Hindo v. University of Health Sciences, 237 Ill. App. 3d 453, 604 N.E.2d 463, 178 Ill. Dec. 207 (1992) (court of appeals rejected retaliatory demotion as cause of action); Scheller v. Health Care Service Corp., 138 Ill. App. 3d 219. 485 N.E.2d 26. 92 Ill. Dec. 471 (1985) (declining to expand tort to constructive discharge). The Zimmerman court stated that the element of discharge was essential to the tort it had created. It explained,
The trial court found that Deborah's affidavit, filed in support of the motion, was insufficient because it did not set forth what she believed the affiants would testify to, or the reasons for those beliefs. Supreme Court Rule 191(b) requires facts, not conclusions. Hindo v. University of Health Sciences/Chicago Medical School, 237 Ill. App. 3d 453 (1992). The circuit court's conclusion that the affidavit was insufficient was not an abuse of discretion. ¶ 18 Finally, Manito argues that it was reversible error for the trial court to not consider the emails attached to its motion to vacate.
Again, although plaintiff here was not required to prove her entire case at the summary judgment stage, she was still required to present a least a factual basis that would arguably entitle her to judgment in her favor. See Churkey v. G.A. Rustia, 329 Ill. App. 3d 239, 245 (2002), citing Hindo v. University of Health Sciences/Chicago Medical School, 237 Ill. App. 3d 453, 459 (1992). This includes all three elements of the Gilbert analysis. See, e.g., Churkey, 329 Ill. App. 3d 239; see also Bagent, 224 Ill. 2d at 163 (failure to establish even one element of cause renders summary judgment proper); Bellerive, 245 Ill. App. 3d at 936.
ecome so intolerable that a reasonable person in the employee's place would have felt compelled to resign'"); New Horizons Electronics Marketing, Inc. v. Clarion Corp. of America, 203 Ill. App. 3d 332, 336, 561 N.E.2d 283, 285 (1990) (holding that an independent contractor which alleged that it was terminated from its position as sales representative for defendant, for its refusal to participate in illegal bribes and kickbacks, could not maintain an action for retaliatory discharge because the court has not "expanded the tort outside of the employment setting" (emphasis in original) and because plaintiff was not an employee but an independent contractor); Stutzman v. Board of Education of the City of Chicago, 171 Ill. App. 3d 670, 675, 525 N.E.2d 903, 907 (1988) (concluding that a retaliatory discharge cause of action does not encompass a 24-hour retaliatory suspension of a school principal who was allegedly disciplined for his failure to cooperate with the school's legal department); Hindo v. University of Health Sciences/Chicago Medical School, 237 Ill. App. 3d 453, 460, 604 N.E.2d 463, 468 (1992) (expressly rejecting retaliatory demotion as a cause of action where medical school professor alleged that he was demoted in retaliation for reporting fraudulent activities of school employees at affiliated hospital); Veit v. Village of Round Lake, 167 Ill. App. 3d 350, 351-52, 521 N.E.2d 145, 146-47 (1988) (holding that Illinois does not recognize a claim of retaliatory harassment). In Sutherland, we concluded that as the law stands today, the tort of retaliatory discharge is available only under two situations: (1) where the discharge stems from exercising rights pursuant to the Illinois Workers' Compensation Act ( 820 ILCS 305/1 et seq. (West 2002)) or (2) where the discharge is for "whistleblowing" activities, reporting illegal or improper conduct.